The following terms and conditions shall govern the contractual relationship between Banana.ch SA and its appointed Reseller. They become applicable as soon as Banan.ch SA (Supplier) and Reseller have executed the Reseller Appointment Letter, that sets forth the details of the relationship and form, with the Appointment Letter, the entire agreement between the Parties (Agreement). In the case of conflicts between the Appointment Letter and these General Terms and Conditions, the Appointment Letter shall prevail.
Supplier hereby appoints Reseller as its non-exclusive reseller during the term hereof for Software (as defined below) and the related subscription plans in the territory indicated in the Appointment Letter (Territory).
2. Software, Product Key, EULA
(a) The Software governed by this Agreement (Software) shall be the Software (with the related subscription plan) mentioned in the Appointment Letter, developed and distributed by the Supplier.
(b) Supplier reserves the right to modify or replace the Software or to remove the Software (or any version thereof) from its product list without replacement at any time.
(c) Supplier has no obligation to include modified or improved products into the range of the Software offered by it to Reseller.
(d) Reseller will sell to its customers (End-Users) the Software activation codes (Product Keys) that will be supplied to Reseller by Supplier. The End-User shall download the Software and activate the subscription plan with the Product Key purchased from Reseller. The End-User will accept the terms and conditions of the End User License Agreement (EULA) when activating the downloaded Software using the Product Key.
(e) If so requested by the End User the Reseller shall make available before the sale of the Product Key a printout of the EULA that the End User is requested to accept when activating the Software with the Product Key, and other promotional materials supplied by Supplier, if any.
3. Status of Reseller
(a) The relationship between Reseller on the one hand and Supplier on the other shall be that of independent contractors. Nothing contained in this Agreement shall be construed to imply a joint venture or principal-agent relationship between the Parties.
(b) Reseller shall act in its own name and for its own account. All financial obligations associated with the business of Reseller are the sole responsibility of Reseller.
(c) Reseller does not have, nor shall hold itself out as having any right, power or authority to create any contract or obligation, either expressed or implied on behalf of, in the name of, or binding upon Supplier.
4. Orders, Supply and Delivery of Product Keys
(a) Each supply of Product Keys by Supplier shall be based on an order placed by Reseller with Supplier by email.
(b) In case the Product Keys are not paid in advance as set out in Section 5(c), Supplier reserves the right to reduce the number of Product Keys that will be delivered compared to the number that has been ordered.
(c) Supplier will confirm acceptance of the orders by email or by other electronic communication within 10 days after placement of the order, with confirmation of expected delivery dates.
(d) Only upon such confirmation the order shall be deemed binding on Supplier. Supplier shall not be under any obligation to confirm an order and nothing in this Agreement shall be interpreted as constituting such an obligation.
(e) Generally no order will be accepted by Supplier unless there are outstanding amounts due under invoices for previous orders.
(f) The Product Keys will be supplied by email in a form to be determined by Supplier that will allow Reseller to sell them individually to the End User.
(a) The prices to Reseller of the Product Keys be those set out in the Appointment Letter and may vary depending on the type of the subscription plan they can activate.
(b) Supplier reserves the right to modify such prices upon a 30 day notice to Reseller by email or letter and the so modified prices shall be deemed accepted by Reseller unless it explicitly objects to them, in which case each of the Party can terminate this Agreement upon the expiry of such 30 days period.
(c) Supplier shall communicate with the order confirmation if the price for the Product Keys is to be paid in advance (in which case the Supplier shall send the respective invoice with the order confirmation and the Product Keys will be delivered only upon receipt of the payment in full) or shall be paid in accordance with Section 5(d).
(d) If the price is not paid in advance, at the end of each month or any other period agreed upon between the Parties, Reseller shall send a report of the number of sold Product Keys. Upon receipt of such report, Supplier will issue the relevant invoice that shall be paid by Reseller within 30 days. Supplier reserves to invoice also Product Keys that have not been reported as sold, but that were used by End User to activate the subscription plan.
(e) VAT, sales and other similar taxes and import duties are not included in the prices set forth in Annex 1 and will be charged in addition to the prices by Supplier to the extent applicable.
(f) The invoices of Suppliers shall be paid by Reseller in the currency of the invoices.
6. Duties of Reseller in relation to the sale of the Product Keys
(a) Reseller agrees to use its reasonable efforts to promote the distribution of the Software with its customer by selling the Product Keys.
(b) Reseller shall not make any modification or alteration to the Product Keys, nor attempt to copy or reproduces Product Keys. Each Product Key may be sold only once to the End User.
(c) To the extent that the Product Keys differ depending to the type of license that wants to be acquired by the End User, Reseller shall ensure that the correct Product Keys types are sold to such End User.
(d) Reseller shall give reasonable assistance and information to the End User about the characteristics of the Software and the type of licenses available.
(e) The Parties may agree from time to time to carry out joint marketing efforts and in such case they will agree beforehand the contribution of each Party.
(f) Reseller may organize training or other assistance services to End Users for the Software. Supplier shall not be part of such activities that shall be carried out by and under the sole responsibility of Reseller. During such activities Reseller shall not infringe any intellectual property rights of Supplier and shall not present itself as an authorized partner of Supplier in such activity or imply that Supplier is in any way endorsing such activity.
7. Intellectual Property Rights
(a) Reseller shall be entitled, for the duration of this Agreement, to use the trademark BANANA, BANANA.ch (Trademarks) for the sole purpose of selling the Products in the manner contemplated by this Agreement.
(b) Reseller hereby acknowledges Supplier's exclusive ownership of the Trademarks and the Software.
(c) Reseller agrees not to:
- Copy the Software and/or distribute unlawful copies of the Software or to facilitate the activation of the Software without using the sold Product Key or in breach of the terms of this Agreement or the EULA;
- alter, remove or obscure any of the Trademarks used on or in relation to the Software and the Product Key;
- use any of the Trademarks in a manner or do any other act which might prejudice their distinctiveness, value or validity or the goodwill of Supplier;
- use in relation to the Software or the Product Key any trademarks other than the Trademarks without obtaining Supplier's prior written consent;
- apply for registration of any of the Trademarks or confusingly similar signs anywhere in the world in trademark registers, domain registers, trade registers etc.;
- use any of the Trademarks for any purpose other than performing its obligations under this Agreement;
- use any of the Trademarks in any manner other than approved by Supplier;
- use any of the Trademarks or any trademark similar thereto in relation to any goods or services other than the Software and the Product Keys as purchased by Reseller under this Agreement.
(d) Supplier warrants that it is the proprietor of the Trademarks and that it is not aware that any of the Trademarks or the use of any of them on or in relation to the Software in the Territory infringes the rights of any third party; notwithstanding the above, Supplier gives no warranty as to the validity of the Trademarks or non-infringement.
(e) To the extent Trademarks are registered or applied for registration in the Territory, Supplier shall pay all fees for obtaining the as well as the renewal fees necessary to maintain during the term of this Agreement such registrations. However, Supplier shall not be under the obligation to apply for registration of any Trademark in the Territory in addition to those already applied for or registered (if any).
(a) Supplier warrants that the Product Key shall enable the activation of the relevant subscription plan of the Software.
(b) In the case of breach of this warranty, the Supplier shall at its sole discretion reimburse the price paid by Reseller for the relevant Product Keys or ship new replacement Product Keys to Reseller.
(c) Any other explicit or implied warranty and remedy for breach of warranty, including damages, is excluded to the extent such exclusion is not prohibited under the applicable law.
9. Limitation of liability
(a) In the case of breach of any obligation, covenant, warranty or indemnity, default or delay or with respect to its performance hereunder, Supplier shall in no event be liable for indirect or consequential damages of any kind, including, but not limited to, loss of profit or revenue, whether based in contract, tort, strict liability or otherwise.
(b) Further the liability of Supplier to Reseller for direct damages, whether based on contract, tort, strict liability or otherwise, shall in no event, exceed the original price invoiced by Supplier for the given Product Key that gave rise to the claim in damages.
(c) Nothing in this Section shall be construed as a limitation of liability to the extent that the liability may not be limited under the applicable law.
10. Term and Termination
(a) This Agreement may be terminated at any time either Party by serving a written 30 day notice to the other Party.
(b) This Agreement may be terminated immediately by either Party if the other Party shall be declared insolvent or bankrupt or if a petition is filed in any court to declare the other party bankrupt or to start any similar procedure under the applicable law.
(c) Either Party may terminate this Agreement forthwith if the other Party is in breach of any obligation under this Agreement and does not cure such breach within 30 days from the request of the terminating party or repeatedly violates this.
(d) Upon the termination of this Agreement, Reseller shall immediately stop the sale of Product Keys which, at the sole option of Supplier, shall be returned to it or destroyed by Reseller. In the Product Keys that must be returned or destroyed have already been paid in advance by Reseller, Supplier shall reimburse the corresponding amount to Reseller.
The contents of this Agreement and all communications and information whether written or oral furnished by Supplier to Reseller in relation to the policies, pricing, methods of working, know-how and other aspects of Supplier's business shall be confidential and except if required by law neither Reseller nor its officers, officials or employees shall, during the term of this Agreement or thereafter, disclose the same to any other person or entity whatsoever.
(a) No variation of this Agreement shall be valid unless it is in writing and signed by the duly authorized representative of the Parties
(b) Any notice regarding this Agreement shall be by way of e-mail or post to the respective contact persons.
(c) If any individual term of this Agreement should be or become ineffective, this shall not affect the validity of the other terms.
(d) This Agreement (composed by the Appointment Letter and these General Terms and Conditions) constitutes the entire agreement between the Parties relating to the subject matter of this Agreement and supersedes all previous oral or written agreement.
(e) No waiver by any party of any breach of any provisions hereof shall constitute a waiver unless made in writing signed by the party.
13. Governing Law and Jurisdiction
(a) This Agreement shall be governed by and construed in accordance with the substantive laws of Switzerland. The UN Convention on the international sale of goods shall not apply.
(b) Each party irrevocably agrees that the courts of the City of Lugano, Switzerland, shall have exclusive jurisdiction to hear any suit, action or proceedings which may arise out of or in connection with this Agreement, provided however that Supplier is entitled to initiate proceedings against Reseller also at latter’s domicile.
Last updated: March 12, 2021.